Lewis v. Haleyville Mobile Home Supply, Inc.

Decision Date24 February 1984
Citation447 So.2d 691
PartiesJerry W. LEWIS and Marcelle Lewis v. HALEYVILLE MOBILE HOME SUPPLY, INC. 82-1220.
CourtAlabama Supreme Court

William H. Atkinson of Fite, Davis & Atkinson, Hamilton, for appellants.

Jackie O. Isom, Hamilton, for appellee.

SHORES, Justice.

Jerry Lewis and Marcelle Lewis, personal guarantors of debts incurred by Boulder, Inc., on its open account with Haleyville Mobile Home Supply (HMH), appeal from a summary judgment entered in favor of HMH in this action to collect the corporate debt. We affirm.

The material facts are undisputed. Boulder owes HMH $33,736.76 on open account. Jerry Lewis and Marcelle Lewis, by written agreement with HMH, personally guaranteed payment on the account, to a maximum amount of $30,000.00. The agreement also provided that the guarantors would pay "a reasonable attorney's fee and all costs and expenses which may be incurred by Creditors [HMH] in the collection of any account due by Debtor [Boulder] or in the enforcement of the Guaranty." HMH filed this action and sought recovery of the debt against Boulder and the personal guarantors. Boulder was dismissed from the suit after it filed a "Suggestion of Bankruptcy," stating that it had filed a petition for relief in the U.S. Bankruptcy Court and that the petition was still pending.

HMH moved for a summary judgment against the guarantors. Accompanying the motion was an affidavit by Tom Casey, the general manager of HMH, stating the amount due and the fact of the guaranty agreement. In addition, Casey stated that "the reasonable and customary contingency fee [for] collections in this area is one third of the amount of the claim which Haleyville Mobile Home Supply, Inc., claims on this Guaranty Agreement," which, of course, would be $10,000.00. The trial court originally awarded HMH's counsel a fee of one third of the amount guaranteed and then, following a hearing on the guarantors' motion for new trial, reduced the fee to $6,000.00, which is twenty percent of the debt.

The only evidence offered by the guarantors in opposition to Casey's affidavit is an affidavit of Marcelle Lewis, secretary of Boulder, in which she stated that she and her husband, Jerry Lewis, are unable to defend themselves or verify the amount of the indebtedness because Boulder's corporate records are in the possession of the bankruptcy trustee. They admit all other material facts.

The rule regarding the form and content of affidavits in opposition to motions for summary judgment appears in Day v. Merchants National Bank of Mobile, 431 So.2d 1254 (Ala.1983):

"Under Rule 56(e), ARCP, an opposing affidavit must be made on personal knowledge, and must set forth facts as would be admissible in evidence and show affirmatively that the affiant is competent to testify to the matters stated. The rule is stated in Butler [v. Michigan Mutual Ins. Co., 402 So.2d 949 (Ala.1981) ]:

" 'It is the rule that when a motion for summary judgment is made and is supported as provided in Rule 56, Alabama Rules of Civil Procedure, a party adverse to such a motion may not rest upon the mere allegations or denials of the pleadings and must submit facts controverting those facts presented by the moving party. Imperial Group, Ltd. v. Lamar Corp., 347 So.2d 988 (Ala.1977); Ray v. Midfield Park, Inc., 293 Ala. 609, 308 So.2d 686 (1975); Glover v. Merchants Adjustment Service, 57 Ala.App. 62, 326 So.2d 129 (1976). Likewise, the affidavits must be made on personal knowledge and must set forth facts to show that the evidence would be admissible as testimony to contradict the movant's evidence. Arrington v. Working Woman's Home, 368 So.2d 851 (Ala.1979); Oliver v. Brock, 342 So.2d 1 (Ala.1977). The scintilla rule cannot be satisfied by speculation and the evidence presented must be supported by at least a reasonable inference. Arrington...

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  • SE Prop. Holdings, LLC v. Sandy Creek II, LLC
    • United States
    • U.S. District Court — Southern District of Alabama
    • January 7, 2014
    ...the contract"). See also, e.g., Smith v. Combustion Res. Eng'g, Inc., 431 So. 2d 1249, 1252 (Ala. 1983); Lewis v. Haleyville Mobile Home Supply, Inc., 447 So. 2d 691, 692-93 (Ala. 1984); Chilton Warehouse & Mfg. Co. v. Lewis, 57 So. 100, 101 (Ala. App. 1911). With respect to its entitlement......
  • Wells Fargo v. Small
    • United States
    • U.S. District Court — Southern District of Alabama
    • July 21, 2011
    ...terms of the contract"); Smith v. Combustion Resources Eng'r, Inc., 431 So. 2d 1249, 1252 (Ala. 1983); Lewis v. Haleyville Mobile Home Supply, Inc., 447 So. 2d 691, 692-93 (Ala. 1984); Chilton Warehouse & Mfg. Co. v. Lewis, 57 So. 100, 101 (Ala. App. 1911)(stating promissory note including ......
  • Parke v. Glover
    • United States
    • U.S. District Court — Southern District of Alabama
    • February 5, 2013
    ...clear terms of the contract"); Smith v. Combustion Res. Eng'g, Inc., 431 So. 2d 1249, 1252 (Ala. 1983); Lewis v. Haleyville Mobile Home Supply, Inc., 447 So. 2d 691, 692-93 (Ala. 1984); Chilton Warehouse & Mfg. Co. v. Lewis, 57 So. 100, 101 (Ala. App. 1911). Therefore, the Court finds that ......
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    • U.S. District Court — Southern District of Alabama
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    ...the contract"). See also, e.g., Smith v. Combustion Res. Eng'g, Inc., 431 So. 2d 1249, 1252 (Ala. 1983); Lewis v. Haleyville Mobile Home Supply, Inc., 447 So. 2d 691, 692-93 (Ala. 1984); Chilton Warehouse & Mfg. Co. v. Lewis, 57 So. 100, 101(Ala. App. 1911). Therefore, the Court finds that ......
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